Opinion: TDs need greater opportunity to scrutinise government proposals and the incentive to do so

The Bill to abolish the Seanad raises questions as to how the Dáil should operate when the Seanad is gone. Currently – though this is an inexact science – the Dáil is regarded as one of the weakest lower house chambers among established democracies. To be passed, the referendum on Seanad abolition should be accompanied by significant proposals to strengthen the Dáil in its relationship with the Government.

Without these the Seanad elite will find it easy to characterise abolition as a diminution of Irish democracy. This is a ridiculous charge – Irish democracy is safe – but neither should the Government be allowed to claim the abolition of the Seanad alone as a reform.

While many people (and even our courts) tend to think of parliaments as forums where legislation is made, few practitioners or political scientists regard this as anything other than a constitutional nicety that possibly never existed. Parliaments’ main roles are to scrutinise legislation and check that government is doing its job effectively and honestly.

We might think of the likelihood of a parliament exercising its scrutiny and oversight roles properly as depending on two factors: the opportunity and the incentive it has to do so.

By opportunity I mean whether it has the time, resources and ability to force governments to furnish information, to offer relevant and expert analysis of government proposals or action and to be able to publicise failings effectively. By incentive I refer to whether the parliament will want to do these things.

Governments in Ireland usually have a parliamentary majority. While the parliamentary majority probably has the opportunity to fulfil its oversight and scrutiny functions – though there are concerns, such as the government’s monopoly on information and expertise – the real problem is that the parliamentary majority lacks the incentive to do so because much of it is made up of government ministers and the government can control its backbenches as it can control their careers.

Opposition parties will have the incentive to expose what they might see as government failings, but because they don’t have much control of Dáil time, because answers to parliamentary questions tend not to be enlightening, and parliamentary inquiries need a majority to be invoked, the Opposition has few enough oversight opportunities.

For any new proposals to be really empowering of Dáil Éireann, they need to give the opposition greater opportunity to scrutinise government proposals and actions, and to increase the incentives for government backbenchers to do so.

In most countries where parliament works well, the committee system is thought to be important. The reorganisation of the committee system will be necessary given the smaller numbers available to run it. For committees to work well they need to have some power. If they have no policy impact, TDs will sensibly choose to concentrate on other things, such as constituency work.

An important innovation – even if it seems a bit wonkish – would be to move the committee stage to the start of the legislative process. Already there is an option for something called pre-legislative scrutiny. This is where the committee gets to discuss the Heads of the Bill – that is an early draft of the Bill usually agreed at Cabinet but not yet formally published. The health committee’s hearing on the proposed abortion legislation is an example. However this doesn’t always happen.

The advantage of the committee discussing a Bill at this stage is that it comes before the plenary (second stage) where parties set out their positions and set-piece debates making an issue partisan. At the pre-legislative stage we tend to see some consensus emerging across party lines and ministers are more willing to accept suggestions. Another advantage is that committees can call expert witnesses, which breaks the government monopoly on expertise.

A reformed Dáil should make this pre-legislative stage compulsory and force the sponsoring department to provide a legislative analysis document which would set out the goals of the policy and arguments as to why its policy will work and alternatives might not.

Cooling-off period
It might also be useful if at the later committee stage a two-fifths minority of the committee could postpone legislation for, say, 30 days, to facilitate a public debate. This would give the sense that the cooling-off period lost by Seanad abolition is retained, but strengthen the opposition because a qualified minority can invoke it.

We also need to weaken government control of the Dáil. With some exceptions, the government parties control appointments to committees and to the position of Ceann Comhairle. The Standing Orders (house rules) of a reformed Dáil should ensure that committee chairs and the Ceann Comhairle are elected by secret ballot and could not be removed except by a decision of the Dáil, again by secret ballot. The Standing Orders effectively give the government control of Dáil time, and whips the allocation of speaking rights. These should be changed to make the Ceann Comhairle a more powerful figure, befitting his high salary. For us to be sure that the government could not overturn these when it suited, the Standing Orders should be given greater weight, where they could only be changed by a super-majority of the Dáil (say two-thirds).

These suggestions are not unusual in a comparative context. In fact Ireland is unusual in how weak our parliament is. If Seanad abolition were supplemented by robust measures to strengthen the Dáil then it would be difficult to oppose abolition.

Without these sorts of reforms it will be easy to paint Seanad abolition as populist gesture politics.

Dr
Eoin O’Malley is a lecturer in political science at the
school of
law and
government, Dublin City University. Twitter:
@AnMailleach

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